Page:Harvard Law Review Volume 4.djvu/132

Il6 HARVARD LAW REVIEW. by statute, and thereupon becoming, by force of the statute, mat- ters of record. It will be seen, therefore, that all debts by matter of record, except judgments rendered in invitum, as well as all specialty debts, after the conditions on which they originally depended were broken, were generally in the nature of penalties. It will be seen also (indeed it has already been seen) that an executor who was sued at law by a creditor of his testator, and who had an amount of assets in his hands equal to the plaintiff's debt, might yet defend himself by showing that such assets would all be required for the payment of debts of his testator of a higher nature than the plaintiff's debt; and for this purpose debts which were in the na- ture of penalties only were as good as any other debts, for they were still legal debts. And yet, as equity would always relieve against penalties, all that equity would permit the owners of such debts to recover was the amount actually due; namely, principal, interest, and costs. An executor might, therefore, defeat a cred- itor at law by means of legal debts of a higher nature which had no existence in equity, i.e.y when there were assets enough to pay all debts of a higher nature which were due in equity, and also to pay the plaintiff in full. Creditors, therefore, who were met with such a defence were frequently driven into equity, not only as the sole means of ascertaining the truth in regard to debts of a higher nature due from their debtor, but as the sole means of obtaining payment from a solvent estate ; namely, by compelling creditors of a higher nature to extinguish the debts due to them by way of penalties on receiving principal, interest, and costs.^ J According to the ancient mode of pleading, when an executor pleaded debts of a higher degree than the plaintiff's, and alleged that he had not more than sufficient assets to pay the former, it never appeared, upon the face of the defendant's plea, whether such debts of a higher degree were penalties or not. The case, of Page i'. Denton, i Ventr. 354, is said to have been the first in which a different mode of pleading was adopted. There, an executor pleaded a bond given by the testator to himself, and stated that the condition of it was to pay rent, and that, at the time of the testator's death, the sum of £2,00 was due from the testator to the defendant for rent ; and the court commended the defendant's mode of pleading by saving : " If men would plead their case specially, it would save many a suit in Chancery." This remark proves that creditors' bills, the object of which was to ascertain, not the amount of assets, but the amount of preferred debts, were then well known. An instance will also be found in Pigott v. Nower, 3 Swanst. 534, noit of a creditor's bill, filed as early as February i, 167 1, the object of which was to ascertain the amount of actual debt for which certain judgments had been confessed by the defendant as administratrix of her husband. In Parker v. Dee, 2 Ch. Cas. 200, Cas. t Finch, 123, 3 Swanst. 529, note, the plaintiff had first brought an action at law, to